[Plaintiff, Appellee] Ilwoo Gongyoung Co., Ltd., Attorney Lee Ki-yeong, Counsel for the Plaintiff
[Defendant, Appellant] Head of Taebaek Regional Labor Office
[Judgment Below] Seoul High Court Decision 93Gu19919 rendered on January 14, 1994
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the facts established by the court below are as follows.
Non-party Taebaek City planned to divide the road widening and paving construction between Hwangji and Tongni into four sections and to carry it out on a yearly basis, and entered into the following contracts with the Plaintiff: (1) on June 15, 1989, a construction contract for Section 1, between Hwangji Bridge and Songijae, with a contract price of KRW 762,378,100, a commencement date of June 17 of the same year, and a completion date of December 13 of the same year; (2) on May 29, 1990, a construction contract for Section 2, between Songijae and Naeryang Bridge, with a contract price of KRW 478,000,000, a commencement date of June 1 of the same year, and a completion date of December 31 of the same year; (3) on March 28, 1991, a construction contract for Section 3, between Naeryang Bridge and Hanbo Danji 3, with a contract price of KRW 303,300,000, a commencement date of April 1 of the same year, and a completion date of November 30 of the same year; and (4) on April 10, 1992, a construction contract for Section 4, between Hanbo Danji 3 and Tongni Railway Crossing, with a contract price of KRW 1,008,000,000, a commencement date of April 15 of the same year, and a completion date of December 11 of the same year.
After entering into the above construction contracts, the Plaintiff, with respect to the construction of Sections 1 through 3, filed a report of establishment of an industrial accident compensation insurance relationship (hereinafter "insurance relationship") within the statutory period of 14 days, in accordance with Article 6(1) of the Industrial Accident Compensation Insurance Act (Act No. 4641, as it existed before the amendment by Act No. 4641 on December 27, 1993; hereinafter the "Act") and Article 4(1) of the Enforcement Decree of the Act (hereinafter the "Enforcement Decree"). However, with respect to the construction of Section 4, the Plaintiff failed to file a report of establishment of the insurance relationship within the statutory period of 14 days, and while it remained unfiled, on May 12, 1992, Non-party 1, who was working on the Section 4 construction, died in an industrial accident.
Accordingly, the Defendant paid KRW 57,531,900 to the bereaved family of the above Non-party 1 as bereaved family benefits, and on October 14 of the same year, pursuant to Article 26-2(1)(1) of the Act and Article 64-2(1) of the Enforcement Decree, imposed upon the Plaintiff an insurance benefit collection charge in the amount of KRW 28,765,950, equivalent to 50/100 of the above insurance benefit amount.
2. Having established the above facts, the court below premised that, in the case of construction works, where the construction period and location, or the nature and content of the construction, are identical, or even if not identical, where the material parts thereof overlap with each other or are carried out as a series of continuous work pursuant to a single business plan of the ordering party, such works shall be evaluated as constituting a single insured business with a single insurance relationship, even if the construction contracts are divided into several parts, without the need for an application by the relevant business operator or a permission or approval procedure by the Minister of Labor. Based on this premise, the court below determined that the construction works of Sections 1 through 4 of this case could be regarded as a single business for purposes of application of the Act, even though the construction contracts were divided into several parts, and therefore that the effect of the report of establishment of the insurance relationship filed by the Plaintiff after the commencement of the Section 1 construction extended to the construction of the entire sections, such that the Plaintiff could not be deemed to have had a separate obligation to file a report of establishment of the insurance relationship with respect to the Section 4 construction. Accordingly, the court below determined that the disposition in this case, which was made on the premise that the Plaintiff had a separate obligation to file a report of establishment of the insurance relationship for the Section 4 construction and on the ground that the Plaintiff had neglected such obligation, was unlawful.
3. Comprehensively considering the purport of the provisions of Article 4, Article 6(1), Article 7, and Article 19 of the Act, and Article 2(1)(7), Article 2(3), and Article 4 of the Enforcement Decree, where a construction project is divided into two or more units and contracted out, whether only one insurance relationship is established for the entire construction, or whether a separate insurance relationship is established for each unit of contracted construction, is determined, first, by whether the final object is completed by the entire construction or whether the final object is completed for each unit of contracted construction, and next, even where the final object is completed by the entire construction, by whether the respective units of contracted construction are carried out independently, separated in time or place. The phrase "the units of contracted construction divided into two or more parts are carried out separated in time or place" means a case where there is no risk that a worker engaged in another separately contracted construction would suffer an occupational accident due to the work, etc. proceeding in one unit of contracted construction — in other words, a case where the units of contracted construction are not within the same risk zone.
Further, where road construction work is divided into several sections and successively contracted out, absent special circumstances, it should be deemed that the final object with respect to each section is completed upon completion of the construction of that section.
4. Examining the instant case in light of the foregoing, according to the record, not only can no special circumstances be found that would warrant regarding the final object of the instant road construction as being completed by the entire construction, but also, although the construction periods of Sections 1 through 4 of this case overlapped to some extent due to delays in the actual completion dates caused by design changes or suspension of construction during the severe cold season, the construction locations did not overlap with each other, and it can be seen that there was no risk whatsoever that a worker engaged in the construction of one section would suffer an occupational accident due to the work, etc. proceeding in another section. Accordingly, the construction of each of the above sections cannot be said to be construction within the same risk zone, and thus the insurance relationship is established separately for each section of construction, and the report of establishment thereof must likewise be made separately for each section of construction.
Meanwhile, the court below held that, with respect to similar construction work, namely the road widening and paving construction between Hwangji and Jangseong, which Non-party Taebaek City also divided into four sections to be carried out on a yearly basis, where the Plaintiff, having been separately contracted for Sections 1 through 4 of that construction by Taebaek City, filed separate reports of establishment of the insurance relationship for Sections 1 and 2, but for Sections 3 and 4 did not file separate reports of establishment of the insurance relationship and instead merely filed a report of change to the existing insurance relationship, which the Defendant accepted (according to the record, it appears that, among the Hwangji-Jangseong road widening and paving construction, Section 4 was contracted to Non-party Gangwon General Construction Co., Ltd., and thus the portion of the judgment below premised on the assumption that the Plaintiff was contracted for Section 4 appears to be a mistake) — in light of this, the court below held to the effect that, in the instant case as well, since the Plaintiff had filed a report of establishment of the insurance relationship for the Section 1 construction, there was no need for the Plaintiff to file a separate report of establishment of the insurance relationship for the Section 4 construction. However, the fact that the Defendant, in a similar case, accepted such a report of change and did not demand a separate report of establishment does not mean that the Plaintiff's obligation to file a separate report of establishment of the insurance relationship for the Section 4 construction in this case was thereby exempted (however, if a report of change of the insurance relationship had been filed, there might be room to view that the obligation to report the establishment of the insurance relationship was not neglected; but the Plaintiff did not even file a report of change with respect to the Section 4 construction).
Accordingly, the judgment below contains an error of law in misapprehending the legal principles concerning the establishment of an insurance relationship and the obligation to report thereon in the case of construction work divided into two or more units and contracted out, and the argument pointing this out is well-founded.
5. Therefore, the judgment below is reversed, and the case is remanded to the court below, with the unanimous consent of all Justices participating in the decision, as set forth in the Order.
Justice Lee Im-su (Presiding Justice), Kim Seok-su, Jeong Gwi-ho (Justice in Charge), Lee Don-hui